Stafford v. City of Valdosta

• Decision Date: 09 May 1934
• Docket Number: 23906.
• Citation: 174 S.E. 810,49 Ga.App. 243
• Parties: STAFFORD v. CITY OF VALDOSTA.
• Court: Georgia Court of Appeals

174 S.E. 810

49 Ga.App. 243

STAFFORD v. CITY OF VALDOSTA.

No. 23906.

Court of Appeals of Georgia, First Division

May 9, 1934

Rehearing Denied June 11, 1934.

Syllabus by the Court.

1. Where in a recorder's court of a municipality an ordinance of such municipality is attacked as being void and unconstitutional and such attack is not sustained, certiorari may be employed to test the correctness of such ruling.

2. The ordinance of the city of Valdosta, making it a crime to purchase intoxicating liquors within the limits of such city is not unconstitutional in that it makes penal an act which is covered by the general law of the state.

3. The ordinance of the city of Valdosta making it penal to purchase intoxicating liquors within the limits of such city is void in so far as it prescribes that the possession of intoxicating liquors is prima facie evidence that the same was purchased, and that such purchase was made within the limits of the city is unconstitutional as being in violation of the "due process clauses" of the state and Federal Constitutions.

4. The other assignments of error in the certiorari do not appear to be sufficiently specific to warrant consideration thereof by this court.

Error from Superior Court, Lowndes County; W. E. Thomas, Judge.

Mary Stafford was convicted in the Recorder's Court of the City of Valdosta of violation of an ordinance, and she brings error.

Reversed.

Transferred from the Supreme Court in 172 S.E. 461.

BROYLES C.J., dissenting.

H. B Edwards, of Valdosta, for plaintiff in error.

Franklin & Langdale and H. C. Eberhardt, all of Valdosta, for defendant in error.

GUERRY Judge.

1. Mary Stafford was convicted in the recorder's court of the city of Valdosta, under an ordinance which provides as follows: "Be it ordained by the Mayor and Council of the City of Valdosta, Ga., and it is hereby ordained by authority of the same as follows: Section 1. That, from and after the passage of this ordinance, it shall be unlawful for any person to purchase, or barter for, any intoxicating liquors within the corporate limits of the City of Valdosta. Section 2. That, if any person shall be found in possession or custody or control of such intoxicating liquors within the corporate limits of said city, such possession, custody or control of same shall be prima facie evidence of the person so in possession, custody or control having purchased same or bartered for such intoxicating liquors, within the corporate limits of said City, in violation of this ordinance." She appealed her conviction to the superior court by writ of certiorari in which she attacks the constitutionality of the ordinance on various grounds. She brings the case to this court excepting to the action of the judge of the superior court in denying her certiorari.

It is insisted by counsel for the city, defendant in error, that certiorari is not a proper remedy for the reason that a void or unconstitutional law cannot be attacked in a petition for certiorari and the case of Sawyer v. City of Blakely, 2 Ga.App. 159, 58 S.E. 399, is cited in support of this contention. However, the case of Forbes v. City of Savannah, 160 Ga. 701, 128 S.E. 806, 807, decides this point against the contention of defendant in error. In that case it was held that an attack upon an ordinance "upon the grounds that it is unconstitutional and void, and is in conflict with a statute of this state, which attack is not sustained by the trial court, does not render such judgment void, and the defendant, when convicted, could sue out a writ of certiorari to correct any errors committed by the trial judge in sustaining the constitutionality and validity of the ordinance. Having jurisdiction of the subject-matter and of the person of the defendant, the judgment of the trial court, finding the defendant guilty and imposing punishment, was not void, even if the ordinance under which he was tried was unconstitutional and void. For this reason the case does not come within the decisions of this court, which hold that the writ of certiorari does not lie to correct a void judgment." This case was followed in Brown v. City of Valdosta (Ga.App.) 172 S.E. 72. The writ of certiorari was therefore the proper remedy to test the correctness of the judgment rendered against the defendant in the recorder's court.

2. The first attack made upon the ordinance, that is, that it prescribes for the punishment of an act which is covered by the general law of the state, is decided against such contention in Bell v. City of Valdosta, 47 Ga.App. 808, 171 S.E. 572; Brown v. City of Valdosta, supra.

3. The ordinance is further attacked upon the ground that it violates article 1, § 1, par. 3, of the Constitution of the state of Georgia and also article 14 of the Amendments of the Constitution of the United States, which are known as the "due process clauses" of the state and Federal Constitutions. The ordinance, which is set out above, provides that the possession, custody, or control of the prohibited beverages shall be prima facie evidence that such person so in possession, purchased or bartered for such intoxicating liquors within the corporate limits of the city. The evidence for the city shows that a policeman went to the home of the defendant where a number of men and women were present and that the defendant ran out of the back door with a pail or bucket and that when the officer caught her she had thrown out the liquid contents of said pail. "By smelling * * * I knew it had contained whiskey." The officer also testified that he arrested the defendant for the possession of whisky. There was no evidence or circumstance which tends to show that the defendant purchased such whisky. The officer testified: "I never saw her purchase any whiskey, or the liquid contents of the pail or bucket, and I do not know when or where she might have purchased any whiskey or the liquid contents of the pail or bucket, and, of my own knowledge, I do not know whether the liquid contents of the pail or bucket were owned by her or someone else, or whether she had made it, or whether it had been given to her." The defendant stated: "We were all having a party at my house, and we had one or two colored men from Jacksonville, Florida at my house. The whiskey which Mr. Shiver says was in the pail or bucket did not belong to me. I never purchased it from any one. It was brought to the party by some of the boys that came."

Within certain limitation, the Legislature may enact that when certain specified facts have been proved, "they shall even in a criminal case, be prima facie evidence of the guilt of the accused, and shift the burden of proof. On this power there are limitations, the principal one of which is that the fact or facts which will raise the presumption and shift the burden of proof must have some fair relation to, or material connection with, the main fact as to which the presumption is raised. The inference or presumption from the facts proved must not be merely arbitrary, or wholly unreasonable, unnatural, or extraordinary, but must bear some reasonable relation to the facts proved." Griffin v....